STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

NINA M MUCH, Employee

BOWLBY CANDY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401254AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee. On July 14, 2006, the commission remanded this matter for a hearing on whether the employee filed a late petition for review for a reason beyond her control and whether she had good cause for failing to attend the June 7, 2006, hearing.

FINDINGS OF FACT and CONCLUSIONS OF LAW

The employee requested a hearing after receiving a denial determination. On May 25, 2006, the hearing office sent out a Hearing Notice scheduling a hearing to be held on June 7, 2006. The employee did not appear at that hearing. A dismissal decision was issued on June 7, 2006. The last date to file a timely petition was June 28, 2006. The employee filed the petition on July 6, 2006.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. 'Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

The standard for failing to appear at a hearing is "good cause." That is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998).

The employee testified that she did not appear at the hearing or file a timely petition because she was incarcerated for a probation hold on May 24, 2006. The employee was not released until June 28, 2006. The employee testified that after she was released she found that her husband had thrown her mail into the garbage that they would burn in a burn barrel.

Generally, the commission finds that an incarcerated individual is expected to make arrangements to have his or her mail monitored during his or her incarceration by a responsible individual so that time-sensitive documentation can be attended to in a prompt manner. In this case, the employee's husband, who one would normally assume to be a responsible individual who would attend to the employee's mail, was throwing her mail away. The record does not reflect that the employee had reason to believe that her husband would discard her mail rather than make the employee aware of the mail that she was receiving.

The commission therefore finds that the petition for commission review was not timely but that the employee has shown probable good cause that the reason for having failed to file the petition timely was beyond the employee's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The commission further finds that the employee had good cause for failing to attend the June 7, 2006, hearing within the meaning of Wis. Stat. § 108.09(4).

DECISION

The petition for review is accepted. The appeal tribunal decision is reversed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed September 15, 2006
muchnin . upr : 132 : 1   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/09/18